"Suits may be brought in the supreme court, in the superior court of the city of New York, and in the court of common pleas in and for the city and county of New York against any corporation created by or under the laws of any other state, government or country for the recovery of any debt or damages, whether liquidated or not arising upon contract made, executed or delivered within the state, or upon any cause of action arising therein. Such suits may be commenced by complaint and summons, together with an attachment as provided by law," etc.

By this legislation the jurisdiction of the supreme court was extended to all causes of action arising within this state. In the same year, section 427 was added to the Code of Procedure, which gave the courts above mentioned jurisdiction in actions against foreign corporations in cases where such action was brought by a resident of this state for any cause of action, and in cases where such action was brought by a nonresident of this state when the cause of action should have arisen or the subject of the action should be situated within the state; again increasing the jurisdiction of the courts in actions against foreign corporations. This jurisdiction remained in this condition until the enactment of section 1780 of the Code of Civil Procedure, where it was provided that an action against foreign corporations might be maintained by a resident of the state or by a domestic corporation for any cause of action, and that an action against a foreign corporation might be maintained by another foreign corporation or by a nonresident in one of the following cases only: (1) Where the action is brought to recover damages for the breach of a contract made within the state, or relating to property situated within the state at the time of the making thereof. (2) Where it is brought to recover real property situated within the state, or a chattel which is replevied within the state. (3) Where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state.

It will thus be seen that by the legislation which has taken place there has been no restriction of jurisdiction, but rather an enlargement thereof. Such being the case, such legislation cannot be held to have in any way infringed upon the constitutional protection of the jurisdiction of the supreme court; and therefore in the case at bar, the cause of action having arisen out of this state, the supreme court has no jurisdiction unless the plaintiffs were residents.

It is urged upon the part of the respondent that the allegations in the affidavit allege that the plaintiffs were residents of the state of New York. An examination of this affidavit, however, will show that it contains no such allegations. All that it alleges is that the plaintiffs are a firm doing business as bankers in the city of New York. They may have resided in New Jersey, in Connecticut, or in Europe, and yet this allegation be perfectly true. It is urged that no case can be found in the books that any similar statement is held to be an insufficient allegation of residence in the absence of express contradictory evidence. It may possibly be that no such case can be found, because it never before, perhaps, had been claimed that such an allegation is equivalent to an allegation of residence. In fact, we find in the provisions of the law in regard to supple

mentary proceedings an express provision recognizing the fact that doing business in a location is not residence, because an execution, to form the foundation for the examination of a debtor in such proceedings, may be issued to the sheriff of the county where the judg ment debtor has at the time of the commencement of the proceeding a place for the regular transaction of business in person, or to the sheriff of the county where he resides if he is a resident of the state. It is apparent, therefore, that an allegation that a party is doing business is by no means an allegation of residence. Our attention is called to cases where presumptions have been indulged in for the purpose of establishing residence. But presumptions cannot be indulged in to sustain an attachment, because the facts necessary to sustain the attachment must be proved by affidavit to the satisfaction of the judge granting the same; not by presumption, but by affidavit. It would seem, therefore, that the allegations contained in these papers were insufficient to establish residence.

We then come to consider the question as to whether additional papers could be allowed to be filed nunc pro tunc for the purpose of sustaining the attachment. The rule seems to be thoroughly well settled that, where a motion is made to vacate an attachment upon the papers upon which it was granted, the attachment must stand or fall according to the sufficiency of those papers. Bookbinding Co. v. Hart, 85 N. Y. 500; Bank v. Alberger, 75 N. Y. 179; Yates v. North, 44 N. Y. 271; Smith v. Arnold, 33 Hun, 484; Kahle v. Muller, 57 Hun, 144, 11 N. Y. Supp. 26.

There is another defect in the papers presented, which, although attention has not been called to it by the counsel for the appellant, in view of the conclusion at which we have arrived upon the other branch of the case, we do not think should be passed unnoticed. The allegation is that the source of deponent's information and belief as to the presentation and protest of the note in question, and the giving of notice, is founded upon a cable received from the correspondent of the deponent's firm in London. This is wholly insufficient to form any basis of judicial action. The judge granting the attachment must be satisfied by the evidence presented, and he cannot be satisfied by the satisfaction of the affiant. It is not the plaintiff that is to be satisfied; it is the judge granting the attachment. And there is no judicial reason for the judge's satisfaction simply because the plaintiff is satisfied, which is all that such an allegation amounts to. The affiant is satisfied of the fact because of the cable; but what is in the cable the court is not informed, and it is impossible for it to tell whether the affiant's satisfaction is justified by the cable Being a party interested, he may have been satisfied, and have believed without the slightest foundation for any such satisfaction or belief. Where a party alleges upon information and belief, and states, that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not. In other words, on these applications, facts, not inferences, must be presented. Bank v. Alberger, 78 N. Y. 252; McCulloh v. Aeby & Co. (Sup.) 9 N. Y. Supp. 361; and other cases might be cited. To sum up the

whole matter, it would seem that it is necessary that there should be presented to the court, upon the face of the papers, facts establishing a reasonably certain right of recovery; and where the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover, nor is any cause of action shown to exist.

Notwithstanding that the main question involved on this appeal has been determined by this court repeatedly, in view of the magnitude of the interests involved, and the interesting argument presented upon the part of the appellant, it has been thought necessary to amplify somewhat, in order that the position of the court might be clearly understood.

The order appealed from should be reversed, with costs, and the motion to vacate the attachment granted, with costs. All concur.

LEWINSOHN v. KENT & STANLEY CO.

(Supreme Court, General Term, First Department. May 17, 1895.)

1. NEGOTIABLE INSTRUMENTS-NOTE PAYABLE TO DECEDENT'S ESTATE. An instrument payable "to the order of the estate of" a decedent is a promissory note payable to a fictitious payee.

2. ATTACHMENT-AFFIDAVIT-STATEMENT OF INDEBTEDNESS.

An affidavit stated that "the said indebtedness arose as follows"; that at a certain time and place defendant for value made its "promissory note * ** to the order of the estate of" one L., deceased, for a certain sum, and that said "note" for a valuable consideration was indorsed and delivered to plaintiff. Held, that such affidavit stated facts justifying the conclusion that plaintiff had a good cause of action, and was therefore sufficient, though the "note" referred to should not be regarded as such.

Appeal from special term, New York county.

Action by Adolph Lewinsohn against the Kent & Stanley Company. From an order denying a motion to vacate a warrant of attachment, William G. McGrath, a junior attaching creditor, appeals. Affirmed.

JJ.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER,

Britton Havens, for appellant.

James F. Horan, for respondent.

O'BRIEN, J. A motion was made by a subsequent lienor and junior attaching creditor to vacate, upon the papers on which it was granted, a warrant of attachment issued in plaintiff's favor against defendant. The plaintiff, against objection, was permitted to read in opposition the judgment roll, showing that his attachment had merged into a judgment. The two grounds urged upon this appeal for reversal are that it was error to permit the plaintiff, in opposition to the motion to vacate, to read and present the judgment roll in this action; and, second, that the affidavit upon which the warrant of attachment was granted was insuffi

cient, as not setting forth facts to establish a cause of action against the defendant.

In considering this second objection it is necessary to refer at length to the affidavit upon which the attachment attacked was based. After reciting the residence of the plaintiff and the nonresidence of the defendant, and that the latter was indebted in a certain sum over and above all counterclaims, it reads as follows: "The said indebtedness arose as follows: In the city of Pawtucket, Rhode Island, on or about the 12th day of May, 1894, the defendant, for value received, made its certain promissory note in writing, dated on said day, wherein and whereby the defendant promised to pay, four months after the date thereof, to the order of estate of D. G. Littlefield, the sum of ten thousand dollars, at First National Bank of Pawtucket, Rhode Island, and thereafter, before maturity, for a valuable consideration, duly delivered the said note to the said estate of D. G. Littlefield, which said estate thereafter duly indorsed the same, but without recourse as against the said estate of D. G. Littlefield, and for a valuable consideration delivered the same to James C. McCoy, who thereafter duly indorsed the same, but without recourse as against the said James C. McCoy, and for a valuable consideration delivered the same to the plaintiff herein, who is still the lawful owner and holder thereof."

Then, omitting a statement as to where the second instrument was made, it in similar language states that defendant made its certain other promissory note. It will thus be seen that the plaintiff bases his right to recover the sums specified from the defendant upon two alleged promissory notes made by the defendant to the order of the estate of D. G. Littlefield, and delivered to the said estate, which said estate thereafter duly indorsed the same, and delivered them to James C. McCoy, who thereafter duly indorsed and delivered the same to the plaintiff. It is insisted that, as there is no such legal entity as the estate of D. G. Littlefield, the alleged notes could not have been delivered to it, or indorsed or delivered by it, and that for this reason the instruments set forth are not promissory notes, they could not have been "indorsed," and such a statement without other facts is not an allegation of assignment of them to the plaintiff, nor would the title so pass to him as to enable him to recover upon them against the maker, upon the facts alleged.

There is undoubted conflict in the authorities as to whether an instrument such as is here described is or is not a promissory note. Thus, in Daniel on Negotiable Instruments (section 100) it is said:

"Where the writing ran, 'I owe the estate of A. B. $190,' it was held that no payee was sufficiently designated, and it was inferred under the circumstances to be a mere memorandum of a balance due. But it has been held that a note regular in form, payable to the estate of T. A. Thornton,' might be sued on by Thornton's personal representative. The contrary view, however, has been taken."

But it is unnecessary for us to determine this conflict, because there are other considerations which we deem controlling as to the sufficiency of the affidavit. The plaintiff was not bound to show that he had a cause of action upon the promissory note, but he was obliged to show that he had an action upon a contract; and in

this connection it is immaterial whether an instrument is described in the affidavit as a promissory note, if sufficient facts are otherwise presented to justify the conclusion that the plaintiff had a good cause of action; and therefore it is unnecessary to determine whether the instrument is a promissory note, or an evidence of indebtedness, or an assignment of a contract to pay, the question being, is there furnished evidence of a prima facie right in the plaintiff to recover as against the defendant? If the instrument described is a promissory note, then there is no question but that a good cause of action is set forth. If, however, we take the view most favorable to the appellant, that there is no such legal entity as the estate of D. G. Littlefield, it being alleged that the defendant, as the maker of the instrument described, for a valuable consideration, duly delivered said note to the said estate of D. G. Littlefield, which said estate thereafter duly indorsed the same, then we think it was a promissory note with a fictitious payee.

*

*
*

as if payable to bearer."

*

The question then presented is, what is the binding nature of such an instrument? Under our Revised Statutes, it is provided that notes made payable "to the order of a fictitious person shall, if negotiated by the maker, have the same effect as against the maker 4 Rev. St. (8th Ed.) p. 2499, § 5. It appearing, however, that this was an instrument made in Rhode Island and payable there, it is to be construed under the Rhode Island law; and, in the absence of proof to that effect, it will not be presumed that the statute law in that state and this is the same, though there is a presumption that the common law is the same in both states. An examination of the common law of this state on the subject prior to the enactment of the provi sions of the Revised Statutes quoted will show that the statute but expresses such common law, and, in accordance with the presumption that may be indulged in as to the similarity of the common law of both states, we think that thereunder a note payable to the order of a fictitious person, if negotiated by the maker, as against him, is equally as binding as though payable to bearer. That such is the construction to be given to such an instrument as the one under consideration, we think, is sustained not only by decisions, but also by the best text writers. Thus, it is said in Daniel on Negotiable Instruments (section 93):

"By executing a promissory note, the maker engages to pay the amount therein named to the bearer, if it be payable to bearer; to the payee or order, if it be payable to a particular person or order. By the very act of engaging to pay to a particular payee, he acknowledges his capacity to receive the money, and also his capacity to order it to be paid to another. And therefore, if the maker is sued by an indorsee of the payee, he cannot defend himself on the ground that the payee had no capacity to indorse it by reason of being an infant, a married woman, a bankrupt, a fictitious person, a corporation without legal existence," etc.

See, also, Scott v. Parker (City Ct. N. Y.) 5 N. Y. Supp. 753.

We think, therefore, that the instrument was a promissory note, payable to a fictitious payee, and, having been negotiated by the maker, was payable to bearer; and there being an allegation that it was delivered to the plaintiff, and that he is the owner and